No. 99-50807 

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* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-50807

Summary Calendar

 

EARNEST RAY SIRLS,

Plaintiff-Appellant,

versus

DAYTON J. POPPELL, Warden; BERNEY KESZLER, Doctor;

J. GIL; ROCHELLE MCKINNEY, RN; WAYNE SCOTT,

Director, Texas Department of Criminal Division,

Institutional Division; RUBY DARLA; JAMES HEYEN;

PATTI ZAROSKY, RN; ARLENE ZMESKAL; EARNESTINE

CARROLL; ELISA BETTALE; LINDA MATHIS; KATI

RODRIGUEZ,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-97-CV-1448

--------------------

April 7, 2000

Before JOLLY, JONES and BENAVIDES, Circuit Judges.

PER CURIAM:*

Earnest Ray Sirls, Texas prisoner # 579081, has filed an

application for leave to proceed in forma pauperis (IFP) on

appeal, following the district court’s grant of summary judgment

in favor of the defendants. By moving for IFP, Sirls is 

challenging the district court’s certification that IFP status

should not be granted on appeal because his appeal is not taken
No. 99-50807 

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in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.

1997).

Sirls contends that the district court erroneously failed to

consider his allegations that the defendants refused to treat him

for asthma in order to retaliate against him. This assertion is

incorrect. The district court noted that Sirls was alleging a

retaliation claim, but found that the prison medical staff

removed Sirls from the Chronic Care Clinic (CCC) for his asthma

condition after tests showed Sirls to be asymptomatic. This

finding is an implicit denial of Sirls’s assertion that the

motivation was retaliation.

Sirls maintains that the court erred in admitting the

affidavit of a defense expert, which expressed concern that Sirls

could have been trafficking or abusing his asthma medication. 

Sirls has provided no reason why the affidavit was not valid, and

the expert’s findings were supported by Sirls’s medical records. 

Sirls maintains that the defendants lied and “fixed” the medical

records to show a lack of asthma symptoms. These unsubstantiated

allegations are insufficient to withstand a motion for summary

judgment. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075

(5th Cir. 1994)(en banc).

Sirls contends that the court erred in applying Estelle v.

Gamble, 429 U.S. 97, 106 (1976), to his case. This issue is

frivolous. The district court properly set forth the standard

for determining deliberate indifference to medical needs, as

articulated in Estelle.
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Sirls maintains that the district court abused its

discretion by not compelling the defendants to answer his second

discovery requests. Discovery matters are entrusted to the sound

discretion of the district court. Richardson v. Henry, 902 F.2d

414, 417 (5th Cir. 1990). The court denied the motion because

Sirls sent the defendants his requests for interrogatories and

admissions in an untimely manner and because he violated the

local rules by not attaching a copy of his discovery requests to

his motion to compel. Sirls has not shown that the district

court abused its discretion with this denial.

Sirls contends that the district court erred in adopting the

defendants’ version of the facts, despite the existence of

conflicting stories. This contention is frivolous. Although

Sirls’s factual statements varied from those of the defendants,

his claims were unsubstantiated and conclusional, which will not

withstand a challenge from competent summary-judgment evidence. 

Little, 37 F.3d at 1075. Sirls has not shown error by the

district court.

Sirls also contends that the district court violated his

rights by considering copies of the prison medical records. The

records were properly authenticated by an affidavit of the

records technician. See FED. R. CIV. P. 41(a)(1). Sirls has not

shown that the district court erred in considering these records.

Sirls’s appeal is without arguable merit and is thus

frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983). Accordingly, we uphold the district court’s order

certifying that the appeal is not taken in good faith and denying
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Sirls IFP status on appeal, we deny the motion for leave to

appeal IFP, and we DISMISS Sirls’s appeal as frivolous. See

Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

Sirls has also filed a request to supplement his IFP brief. 

He has added an argument asserting that his right to be treated

for his asthma within the CCC is protected under the Americans

with Disabilities Act and the Rehabilitation Act of 1973. This

court would be unable to review the merits of these claims. 

Sirls never raised these theories of recovery in the district

court, so the district court never had an opportunity to err. 

See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th

Cir. 1999), cert. denied, 120 S. Ct. 982 (2000). As a result,

Sirls’s motion to supplement is DENIED.

APPEAL DISMISSED; MOTION TO SUPPLEMENT DENIED.